Sovereign equality today

Formalizing Displacement: International Law and Population Transfers

To speak of sovereign equality today is to invite disdain, even outright dismissal. In an age that has become accustomed to compiling “indicators“ of “state failure,” revalorizing nineteenth-century rhetoric about “great powers,” and circumventing established models of statehood with a nebulous “responsibility to protect,” sovereign equality seems little more than a throwback to a simpler, less complicated era.

To be sure, as a general principle, sovereign equality remains foundational to both customary and conventional international law. Article 2(1) of the UN Charter retains its nominally sacrosanct status, a foundational point of reference for a modern international law that promised to do away with the “standard of civilization”. Similarly, all the other classic articulations of independence and non-interference, especially the 1970 Friendly Relations Declaration, continue to be invoked, often with much the same spirit of solemnity.

Yet a great deal has also changed in recent decades. We have grown familiar to hearing that borders are no longer what they once were (or what, at any rate, they were once imagined to be). Traversed by goods, services, people, and capital, not to mention information, territorial frontiers have been characterized by wave upon wave of globalization theory as “fluid” and “porous”. Likewise, conventional legal models of recognition and jurisdiction have come under intense criticism. Among other things, the colonization of large chunks of international law scholarship by political science has generated a large literature on “rogue states”.

Not surprisingly, such developments have put the very idea of sovereign equality under pressure. And this, in turn, has had significant systemic consequences for international law as a whole.

Of course, sovereign equality is not without its problems. The principle has legitimated the very injustice it is purportedly designed to combat, enshrouding real inequality in a purely notional equality. After all, in itself, a bare assertion that states are equal and endowed with the same legal personality does remarkably little to rectify actually existing inequalities. Worse still, “rights of sovereignty” have been invoked to justify all manner of abuses, typically by national elites determined to augment and consolidate their class power.

Part of the difficulty here is that far from being inherently “progressive”, sovereign equality is a concept with a rather murky pedigree. While its roots reach back centuries, the principle assumed strong doctrinal form during the nineteenth century by way of the Concert of Europe’s commitment to the European balance of power. This commitment was typically premised upon the impermissibility of intervention in “civilized” states and the permissibility of intervention in “uncivilized” and “semi-civilized” regions. That is hardly an ideal foundation for an emancipatory principle.

All of this is true. But it is also worth keeping in mind that sovereign equality has frequently furnished politically and economically weaker states with a measure of protection against aggression and intervention. As a response to de facto inequality, international lawyers instinctively prioritize de jure equality. Absent such insistence on formally equal rights and obligations, it is often assumed, the will and interests of some states would be subordinated to the will and interests of other states, with predictably dire implications for international legal order.

To underscore the significance of sovereign equality today is not to cling to an outdated mode of conceiving international relations. Nor is it to deny that sovereign power has its “dark sides”. It is simply to stress the need for greater appreciation of the fact that sovereignty may under certain circumstances provide a buffer against some of the most direct and explicit forms of inter-state violence. It is worth recalling that the history of international law is to no small degree the history of attempts to secure recognition for (one or another account of) sovereign equality. This is anything but a puerile pursuit.

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